James Gill: The debtors' prison at Tulane and Broad

Orleans Parish Criminal District Court is undergoing renovations including for removal of asbestos and lead in New Orleans, La. Thursday, March 2, 2017.

By James Gill

Feb 7, 2018 - 9:00 pm

Although Orleans Parish Criminal Court judges took steps to clean up their act, the racket they had going was still blatantly unconstitutional.

In so ruling a couple of months ago, federal judge Sarah Vance noted that the conflict of interest in which the judges found themselves was not their fault. State law decrees that their court expenses are partly funded by the fines and fees they levy, so the more they stick it to defendants, the more moolah they have at their disposal.

The law allocates half the revenue from fines to district attorneys, so the implications for the criminal justice system throughout the state are wide-ranging. The state, which is famously teetering on the edge of a “fiscal cliff,” will have to find another way to pay the bills.

That need not mean ruination, however, since there is nothing wrong in principle with using money generated by the courts to help pay for their operation. If the revenues were to go to the state, which would, in turn, be responsible for allocating money to the court system, the judges would have no direct interest in screwing some wretched shoplifter, say, for all, or more, than he's worth.

The courts might still experience an attack of the shorts, however. Although it cannot be said for sure that the revenues from fines and fees would, in such circumstances, diminish, that is what the smart money says.

Right now, one of the Orleans judges, Franz Zibilich, has said fines and fees “probably represent fully a fourth of what we need to be operational.” That has meant an annual contribution of about $1 million to the court's judicial fund, from which the judges pay the salaries and benefits of their employees. Perhaps you were under the impression that debtors' prisons live on only in the novels of Charles Dickens, but plenty of people have done time in New Orleans as punishment for being poor.

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Since Criminal Court defendants tend to have very little money in their pockets, many of them have not been able to comply with the judges' orders, and have thus been hauled off to the slammer. Locking people up is an expensive proposition, so this system of financing the courts is not only unconstitutional but hugely wasteful. The notion that it saves the taxpayer money is largely an illusion.

Although Vance was at pains to blame this abomination on state law, let nobody get the impression that the judges are blameless. Their own salaries are paid by the state, and the law says the Judicial Expense fund cannot be used to supplement them. But the judges until around five years ago raided it to the tune of hundreds of thousands a year to award themselves and their spouses deluxe health and life insurance policies. The judges were shamed into abandoning those illicit perks, but the Judicial Expense Fund still pays their professional liability insurance.

When a lawsuit was filed on behalf of several people who had done time in parish prison for lacking the money to pay fines and fees, the judges suddenly admitted the error of their ways. They recalled all arrest warrants issued for failure to pay fines and fees and forgave $1 million in debts.

In fact, it is by no means always wrong to hold a defendant in contempt for nonpayment. Clearly, a millionaire drunk driver who refuses to pay a just fine belongs behind bars. A quick hearing can in most cases establish whether a defendant is able to meet his obligations, but the Orleans judges couldn't be bothered, preferring to lock everyone up willy-nilly.

The lawsuit spelled out the pointless cruelties that follow ineluctably from such slapdash policies. A typical case was that of a woman arrested and held in jail for a week before being granted a hearing on why she had missed a payment. When she explained that she had just given birth, but would resume payments ASAP, she was let out.

The judges argued that they had instituted sufficient reforms to meet constitutional objections, when it should have been obvious that the underlying conflict could never be resolved so long as they are in for a share of every buck they shake loose.